Mashat (Migration)

[2018] AATA 1578

Mashat (Migration) [2018] AATA 1578 (5 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mousa Mashat

VISA APPLICANT:  Ms Nargiza Toshbaeva

CASE NUMBER:  1710640

DIBP REFERENCE(S):  229285

MEMBER:Tania Flood

DATE:5 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 05 March 2018 at 9:57am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visa) – Tourist stream – Visiting Australian citizen partner – Genuine intention to stay temporarily – Inconsistent evidence – Credibility concern

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211, 600.221, 600.222, Schedule 8, Condition 8101, 8201, 8503, 8531

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 April 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 11 April 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The visa was refused on the basis that the visa applicant did not meet cl.600.211 because the Delegate was not satisfied that she genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 1 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s friend, Mr Basam Shakir and the visa applicant overseas. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

7. Information before the Tribunal prior to hearing:

8. The review applicant was born on 1 July 1977 in Baghdad.  He is now an Australian citizen.  He is separated from his wife and is presently going through a divorce.

9. The visa applicant was born on 18 June 1988 in Uzbekistan. Her mother and two sons aged 4 and 10 reside in Uzbekistan.  She is also separated and in the process of divorcing her husband.

10. The visa applicant applied to visit Australia for up to three months to spend time with her partner.

11. In a statement dated 10 May 2017 the review applicant states:

12. He met the visa applicant in Bangkok in November 2016 where she was working in the hotel where he was staying and from there on they became close partners.  Since their initial meeting they have met regularly in Thailand.

13. There is no risk that the visa applicant will not return home at the end of her visit because she has two sons at home.

14. He is willing to provide a security bond in order to facilitate the grant of the visa.

    TRIBUNAL HEARING

15. The review and visa applicants evidence to the Tribunal is summarised as follows:

16. The review applicant is now divorced.  He lives in his own property.  He has worked as a Centre Manager for Westfield for four years.  He has two children aged four and eleven.

17. The review applicant came to Australia with his family when he was a young boy.  His family were granted refugee status offshore and settled in Australia.  His father is now deceased but his mother and the rest of his family, including uncles and aunts are all in Australia.

18. The visa applicant is from Uzbekistan. 

19. The review and visa applicants met in Phuket in November 2016.  The review applicant was on holiday and the visa applicant was also holidaying with her mother and her children.

20. The review and visa applicant’s stated that the visa applicant is not currently working.   She is supported by the review applicant because if she was tied to a job they would not be able to travel regularly to Thailand to spend time together. The visa applicant indicated that she once worked for a brief period of time in a hotel in Uzbekistan but the trial was not formalised.  She said she has never worked in Thailand.  The review applicant stated that she worked for a short while in the hotel industry in Thailand.

21. The review and visa applicants have met regularly in Thailand since November 2016 with the last time being in February 2018.  Being an Uzbekistan national, the visa applicant is only permitted to remain in Thailand for two weeks at a time.

22. The visa applicant indicated on her application for a Visitor visa that she would like to visit Australia for up to three months in order to spend a longer period of time together with her partner.  At hearing she said that she could only remain in Australia for one month because she cannot leave her children alone for a longer period of time.

23. The review and visa applicants are planning to marry in the future and when that happens they will apply for a Partner visa offshore. 

24. The visa applicant lives with her mother and her children, aged nine and three, in Uzbekistan.  She is also now divorced and has no contact with her ex-husband other than arranging weekly visits for her children.  She has no reason to fear her ex-husband.

25. The visa applicant also has a brother and a sister in Uzbekistan.  Her brother lives in the same apartment building as her and her mother and her sister lives in Tashkent.  Her father is deceased.

26. The visa applicant has only ever visited Thailand and Malaysia.  She has not been refused a visa to any other country.

27. The visa applicant will be financially supported to travel to Australia by the review applicant and will be accommodated by him while in Australia.  They plan to see the local sights but for the majority of the time they simply want to spend a prolonged visit together in a non-holiday setting.

28. The visa applicant will return to Uzbekistan at the end of her visit because her children will remain there with her mother while she is away.

29. The visa applicant reports having no problems in Uzbekistan on account of her religion or for reason of being a divorced Muslim woman or for any other reason.

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

31. In the present case, the visa applicant seeks the visa for the purposes of visiting her partner. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

32. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

33. As noted the review applicant is a settled refugee and now an Australian citizen.  The visa applicant has never visited Australia.

34. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(2)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

35. For the following reasons, the Tribunal is not satisfied the visa applicant will comply with condition 8531 or that she genuinely intends to visit Australia temporarily.

36. The Tribunal notes and finds it problematic that the review and visa applicant’s evidence as to how and where they met is different to the information provided by the review applicant in his written statement dated 10 May 2017.  This was discussed with the review applicant during the hearing.  The Tribunal noted that his statement indicates that they met in a hotel in Bangkok where the visa applicant was working and not in Phuket where the visa applicant was holidaying with her family as he claimed in his oral evidence and as was claimed by the visa applicant in her oral evidence.  

37. The review applicant responded that the statement was written some time ago and that they did meet in Phuket but later returned to Bangkok together.  He said that the visa applicant did tell him that she had worked in the hotel industry in Bangkok.  

38. The Tribunal has considered the review applicant’s responses but does not consider this adequately explains why he previously stated that he met his partner while staying in the hotel where she worked in Bangkok.  It was submitted by the review applicant’s witness at hearing that it is possible the visa applicant had made this statement in a bid to impress the review applicant.  While the Tribunal accepts that people occasionally overstate their situation the Tribunal considers it would have been evident to the review applicant whether the visa applicant was working in the hotel or not.  Even if the review applicant had been misinformed about by the visa applicant about her employment this does not overcome the Tribunal’s concern because it indicates a willingness on her part to provide false information for personal gain.  In the Tribunal’s view this situation reflects poorly on the credibility of the review and visa applicants and causes the Tribunal to doubt that the visa applicant’s intentions to only want to visit Australia temporarily are genuine.

39. In addition to the above, the visa applicant is divorced with two young children whom she claims she is responsible for supporting.  On the evidence of the review and visa applicants she does not work and effectively has never worked and is currently reliant on the review applicant to support her financially.  The Tribunal notes she intends to leave her children behind with her mother if she visits Australia and that this provides some incentive for her to return to Uzbekistan.  However, the review and visa applicants have expressed an intention to marry which would allow the visa applicant to apply for a Partner visa and to bring her children to Australia in future.    The Tribunal is of the view that the visa applicant’s current financial position is a strong disincentive for her to return home at the end of the visit.

40. It was suggested at hearing that the visa applicant also has her mother to return to in Uzbekistan but as noted it is the expressed intention of the review and visa applicant to marry in the future and for her to relocate to Australia permanently.  The Tribunal is not persuaded that the presence of her mother provides a strong incentive for the visa applicant to return home at the end of her visit.

41. At present the only opportunity the review and visa applicants have to spend time together is on short visits to Thailand.  The review applicant works full-time and is limited in the amount of time he can be away from his employment and the visa applicant can only enter Thailand for two weeks at a time before she is required to leave again.  At the hearing the review applicant stated that he had recently travelled to Uzbekistan himself but was refused entry to the country because his visa was not in order.  While he states that he has reapplied for a visa and is confident he will gain entry to the country in future the Tribunal nevertheless considers their opportunities to spend time together for any meaningful length of time are significantly restricted at present. The Tribunal considers this situation also provides an incentive for the visa applicant to remain in Australia beyond the term of her visa.

42. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

43. For the above reasons the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are not met.

    DECISION

44. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Tania Flood
    Member